### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs F

ebruary 5, 2002
STATE OF TENNESSEE v. LARRY BROOKS
Appeal from the Circuit Court for Crockett County

No. 3216 L. T. Lafferty, Judge

No. W2001-02478-CCA-R3-CD - Filed April 26, 2002

The Defendant, Larry Brooks, was convicted by a jury of aggravated r

obbery, aggrava

ted assault, aggravated

burglary, vandalism, and theft up to $500. The Defendant was subsequently sentenced
as a Range III, persistent offender to twenty years for the robbery, ten years for the assault, ten years for the burglary, an

d eleven months,

twenty-nine days for each of the misdemeanors, all sentences to run concurrently. In this direct appeal the Defendant raises four issues: (1) whether the trial court erred in denyin g his mo tion to suppress; (2 ) whether the ev

idence is suffic

ient to support his convictions; (3) whether thetrial court erre d in sentencing the Defendant more than forty-five days after the jury verdict; and

(4) whether the

trial court erre

d in classifying the Defendant as a persistent offender in imposing sentenc

e. Finding that princ

iples of double jeo

pardy prohibit

the Defendant’s convictions for aggravated assault and theft, we reverse and dismiss those convictions. In all other respects, we affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in Part; Reversed in Part

D AVID H. W ELLES , J., delivered the opinion of the court, in which D AVID G. H AYES and R OBERT W. W EDEMEYER , JJ., joined. S. Jasper Taylor,

IV., Bells, Tenne

ssee, for the app

ellant, Larry Bro

oks.

Paul G. Summers, Attorney General and Reporter; J. R oss Dyer, Assistant At torney General ; Clayburn L. Peeples, District Attorney General; an d Gary Brown, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

The vic tim, Ms. Bennie Faye Leggett, testified that between 6:30 and 7:00 p.m. on th e evening of November 22, 1999, she was sitting in her den watchingte levison when a black man entered her house and asked her if she had any money. She responded that she had “a little,” and the man then brandished a box cutter with the blade displayed, telling her he wanted he

r money. Ms.-2-

Leggett retrieved her billfold and gave the man two twenty dollar

bills and several

one dollar bills. The man took the bills, a

s wellas some change laying on a table, and left. Ms. Leggett then locked her doors andcalled the police. Ms. Leggett testified that she had been “terrified” by the encounter. When the police arrived, they discovered tha t a storm window had been removed from a back bedroom window, and the window opened. Ms. Leggett did not identify the Defendant at trial. George Boykin testified tha t he was a neighbor to Ms. Leggett, and that he saw the Defendant standing in his

yard on the evening of the burglary. Mr. Boykin did not know why the Defendant
was there. The Defe

ndant asked Mr. Boy

kin for a ride to Be

ll s, where the Defendant lived. Mr. Boykin accommodated the De fendant, and when he returned, found “a yard full of police.” In response to the officers’ questions, Mr. Boykin explained where he had dropped of

f the Defendant

. Mr. Boykin testified that there “[w]asn’t nothing wrong with [the Defendant] when [he] saw him.”

Officer Jeff Sills respond

ed to the call and s

poke with Ms. Legge

tt. Officer Sills

testified that Ms. Leggett was “ver

y upset.” Ms. Leggett explained what had happened and gave Officer Si

lls a description of the burglar

. After speaking w ith Ms. Leggett and M

r. Boykin, Office

r Sills apprehended

the Defendant a

nd recovered a

n orange box cutte

r from a rear pocket of the Defendant’s jeans. Officer Sills also recovered thirteen dollars and a lighter from

the Defendant’s person, and
a crack pipe found in the Defendant’s “vicinity.” Officer Sills testified that the Defendant appeared to be under

the influence of some type of intoxicant, and for that reason deci

ded not to intervie

w him that night.

Officer Sills testifiedthat he and Deputy Barney Robertson interviewed the Defendant the next day at about 4:00 in the afternoon. The Defendant was “very apologetic,” and began explaining what had happened as Officer S i lls was trying to read him his rights. Officer Sills asked the Defendant

to stop until he was f

inished with the rig

hts waiver, an d the Defendant s ubsequently signed the rights waiver

form. The Defen

dant confessed to

the events of the p

revious night, an d Officer Sills asked him to write out his statement. The Defendant told Officer Sills that he wanted Officer Sills to write the statement, which Officer Sills did. The Defendant then signed th e statement. The te

xt of the statement

is as follows: I Larry Brooks walked from Gadsden to Fruit vale at which time I walk up to the house to rear and took the window screen and the storm window out, at which time I Larry Brooks went into house[.] [T]he victim was watching tv and told her to give me her money. I
cou ld ha ve had the box cutt er in my hand[.] I

got two $20.00 bills from her purse and I Larry Brooks left went across the street and got
a ride from George

Boykin to Bells. I got the crack cocaine from off Woods Road.

Officer Sills testified that, the next day, t he Defendant sent out a letter to Officer Sills for delivery to Ms. Leggett. The letter was signed by the D

efendant. The te

xt of the letter is a

s follows:-3- Hi! I just want to say I’m sorry for my actions. I was druged [sic], hope you can forgive me. I hardly remember what happen and I really fill [sic] bad. I hope I

can get help from the courts. I know I’m in trouble but I’m not a bad person. I was doing great until I smoked
a bad piece of dope. Seem like I lost my mind and I think [sic] God for no t allowing me to harm you beca use I had no contr

ol of my body. Please

don’t hate me, I’m sorry. I no [sic] you believe in God
so ask God to help me although I did you wrong. It wasn’t meant to be. I’m sorry. Larry

De p uty Barney Robertson did not participate

in the Defendant

’s apprehension

, but did participate

in taking the Defe

ndant’s sta tement the next day. Deputy Robertson testified, “[the Defendant] told us exactly where -- what window he went through and that he want[ed] to go ahead
on and get it over with

because he didn’t want to bring this old lady to trial and dragher through all this stuff.” Accord

ing to Deputy

Robertson, the Defendant subsequently explained that “he couldn’t write that good that he wished somebody would write [his statement] for him.”

The Defendant testified, and stated that he “did not break in [Ms. Leggett’s] house and [he] didnot rob her.” With respect to his confession, the Defendant testified that when Officer Sills and Deputy Barne y took him out of his cell, they told him that if he “didn’t apologize to that woman, [he] was going to be in

jail a long time.” The Defendant also stated that one of the office

rs told him that t he victim had given his name and that th

ey had his fingerp

rints on the victim’ s purse. H e deniedtelling Of

ficer Sills the matters contained in the written statement, stating that he signed a blank piece of paper. He admitted writing the letter of apology, explaining that he wrote it the night he was apprehended while he was “strung out” on cocaine and after he w as told that he would be there “a long time” if he didn’t apologize. The Defendant testified that he gave the letter to Officer Sills the next morning, e

xplaining that if

the victim could identify him, he would “take the charge.” The Defendant testif

ied that he was in

Fruitvale to visit “Sarah and them’s house” but they weren’t home, so he walked over to Mr. Boykin’s house to get a ride to Bells.

On cross-examination the Defendant explained that he had been carrying the b ox-cutter because he had used it earlier in the day to lay a rug. Also on cross-examination , t he Defendant deniedthat he signed the rights waiver form, and explained that he asked for the letter of apology to be returned to him after he “came down” from the cocaine and realized he

hadn’t committed the crimes. He stated that Of ficer Sills refus

ed to return the le

tter. The Defen

dant als o t estified on cross-examination that he remained “strung out” from the cocaine for two weeks. The Defendant testified that he admitted to the crimes “[b]e

cause they made me feel like I did while I was on the drugs.”

The Defendant first contends that the trial court erred in refusing to suppress

his statement. We initially

note that “a trial court’s findings of fact in a suppression hearing will be upheld unless the evidence preponderates otherwise.” State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). Moreover,-4-

questions of witness credibility, the weight and value of the evidence adduced at the suppression hearing, and resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of fact. Id. When reviewing a trial court’s ruling on a motion to suppress, this Court may consider boththe evidence adduced at th e suppression hearing and the evidence presented during the subsequent trial. See State v. Henning , 975 S.W.2d 290, 299 (Tenn. 1998). During the suppression hearing, Officer Sills, Deputy Barney Robertson, and the Defendant testified similarly to their testimony at trial. That is, the law enforcement officers testified that the Defendant

made a voluntary confession, and the Defendant testified that he did not, but merel y signed a blank piece of paper that Officer Sills

then filled in with O

fficer Sills’ ver

sion of the events. The trial court r

uled at the suppre

ssion hearing as f

ollows: So, it comes down here to an a ssessment of the c

redibility of the witness es which I would find more reasonable on behalf of the Statebased on their

demeanor, their sources of information and things like that. I don’t find it believable or plausible that the o ff icers had h i m sign a blank piece of paper and then filled in the information. So, in essence, I d

eny the Motion to Supp

ress.
The evidence do

es not preponder

ate against the tr

ial court’s findin

gs. This issue is witho

ut merit.

The Defendant next contends that the evidence is not s ufficient to susta in his convictions, pointing out that a confession must be corroborated by suffici ent indepe ndent proof to supp ort a guilty verdict. We acknowledge that, as recently noted by our supreme c ourt, “[ i]t is a wellestabl ished principle of law in this state that a conviction cannot be founded solely upon a defendant’s confession, and our cases have long required some corroborat

ing evidence in or

der to establish the corpus delicti.” State v. Smith , 24 S.W.3 d 274, 281 (Tenn. 2000). However, the corroborating evidence is sufficient if it te

nds to connect the

defendant with

the commission of the offense, even where the

evidence is slight and entitled to but little weight when standing alone. Id. (citing Ricketts v. State , 241 S.W.2d 604, 606 (Tenn. 1951)).

In this case, the Defendant’s confession is corroborated by his presence near the scene of the crime and the pre

sence of the box-

cutter on his

person. While this evidence may, indeed, be only “slight,” it is sufficient to corroborate the Defendant’s confession. Accord ingly, th e evidence is sufficient to supp

ort the Defenda

nt’s convictions, a

nd this issue is withou

t merit. Although not raised by eithe r party in this appe

al, we find plain

error requiring the reversal
o n double j eopardy grounds of the Defendant’s convictions of theft and aggravated assault. See Tenn. R. Crim. P. 52(b). Theft is a lesser-included offense of aggravated robbery. See generally , Statev. Burns , 6 S.W.3d 453, 466- 67 (Tenn. 1999). See also State v. Bowles , 52 S.W.3d 69, 79 (Tenn. 2001); State v. Hayes , 7 S.W.3d 52, 56 (Tenn. Crim. App. 1999) (findi ng that “theft is a lesser included offense of robbery and aggravated robber y.”) Beca use the Defendant’s theft
con viction in this case is based upon the same facts as his aggravated robbery conviction, doub l e jeopardy principles r

equire thathis theft conviction be dismissed. See Hayes , 7 S.W.3d at 55-561 Aggravated robbery may b e comm itted witho ut any fea r on the p art of the vic tim, i f i t i s ac comp lished by

violence. See Tenn. C ode An n. § 39-1 3-402 (a)(1). Po inting a de adly we apon at th e victim during the course of an aggrav ated robb ery, as wa s done in this case, con stitutes violen ce. See State v. Allen , __ S.W.3d __, __, 2002 Tenn. LEXIS 76, at *8 (Tenn. 2002). But see State v. Aaron Benard Gray , No . 02 C01- 9707 -CC- 0027 0, 1 998 T enn. Cri m. App. LEXIS 505, at *6-7 ( Jackson, May 1, 1998) (“[a]ggravated ass ault causing another to reasona

bly fear i

mminent bodily injury by the use of a dead ly weapo n is a lesser inclu ded offe nse of ag gravated robbery by the us e of a dea dly weapon.”)
-5- (noting that “[a]n offe

nse encompassed

in total within

another offense . . . does not require proof of
an additional fact, and it is therefore considered the same offense and

barred by double jeopardy.”)

Double jeopardy considerations also require reversal of the Defendant’ s aggravated as sault conviction. In State v. Denton , 938 S .W.2d 373, 38 1 (Tenn. 1996), our supreme court set forth a four-step analysis for

determining wheth

er multiple

convictions arising from the same conduct are barred by Tennessee’s constitutional prohibition against double jeopardy: (1) a comparison of the statutes giving rise to the convictions under Blockburger v. United States ; (2) an analysis of the evidence used to prove the offenses; (3) a consideration of whether there were multiple victims or discrete acts; and (4) a comparison of the purposes of the respective statutes. No one of these steps is determinative; rather the results of each must be weighed and

considered in relation to each other. Id.

The Blockburger

test provides that “where the same act or transaction constitutes a violation of two distinct statutor

y provisions, the te

st to be appliedto determine whether there are two offenses
or only one is whether each provision requires proof of an additional fact which the other does not.” Blockburger

v. United States , 284 U.S. 299, 304 (1932). Aggravated robbery, as charged and proved in this case, is the intentional or knowing theft of property from the person of another by violence
or putting the person in fear, accomplished with a deadly weapon. See Tenn. Code Ann. § 39-13- 402(a)(1) (emphasis added) . Aggravated ass ault, as charged

and proved in

this case, is intentionally
or knowingly causing another to reasonably fear imminent bod ily injury, accom

plished with a dea

dly weapon. See id. § 39-1 3-1 02(a)(1)(B). Thus, aggravated robbery requires a theft of property, an element which is not required for a conviction of aggravated assault. Aggravated assault requires that the victim “reaso

nably fear immine

nt bodily injury,” a

n element n ot necessarily required for aggravated

robbery. 1 Accordingly, we conclude that aggravated assault and aggravated robbery are not the “same” offense under Blockburger

. The other three steps of Denton indicate, however, that the Defendant’s dual convictions for aggravated

assault and aggravated robber y in this case are based on the “same” offense and are thereforebarred by double jeopardy. The same evidence was used to prove both offenses: the Defendant

accosted the vic

tim in her home

and brandished a box c

utter in order to p

ersuade her to give him money. There was but a single victim, and a single

act. The purpose

of each statute i

s to prevent ass ault s and robberies with deadly weapons . Accordingly, we conclude that, under the principles set forth in Denton , the Defendant’ s dual convic tio ns for aggravated robbery and-6-

aggravated

assault are barred by double jeopardy. The refore, we reverse and dismiss the Defendant’s conviction for aggravated assault.

In his next issue the De

fendant contend

s that the trial cou

rt erred when it c

onducted his sentencing hearing on the forty-sixth day following the guilty verdicts. The Defendant relies upon
a provision of our se

ntencing statutes

which states, in

pertinent part,

“[b]efore imposing sentence or making other disposition u pon . . . a verdict . . . of guilty, the court shall conduct a sentencing hearing without unreasonable delay, but in no event more than forty-five (45) days after the finding of guilt . . . .” Tenn. Code Ann. § 40-35-209(a).

We first note that

“ it is the general r

ule in Tennessee tha

t statutory pr

ovisions which rela

te to the mode or time of doing an act to which the statute applies are not to be mandatory, but directory only.” State v. Jones , 729 S.W.2d 683, 685 (T enn. Crim. App. 1986

). This general rule a

pplies to this particular provision. Id. Moreover, the Defendant has demonstrated no prejudice resulting from this one day delay, and

is therefore entitled to no relief. See id. (finding that “no prejudicial error requiring appellate reversal occurred with regard

to this issue inasmuch as the delay in sentencing amounted to only three days . . . [and] without a showing by the appellant of resulting prejudice, any error must be har

mless. ”) In short, this iss ue is without merit.

Fina lly, the Defendant contends that his sentence is excessive, arguing that the trial court erred in finding him to be a Range III, persistent offender. When an accused challenges the length, range, or manner of service of a sentence, this Court has a duty to conduct a de novo review of the sentence with a presumption that the determinations made by the trial court are correct. See Tenn. Code Ann. § 40-35-401(d). This presumption is “conditioned upon theaffirmative showing in the record that the trial cou rt considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).

When conducting a de novo review of a sent ence, this Court mus

tconsider: (a) the evidence, if any, received

at the trial and sentencing hearing; (b) the presentence report; (c) the principles of sentencing and arguments as to sentenci ng al ternatives; (d) the nature and characteristics of the criminal conduct involved; (e) any statutory mitiga ting or e nhancement

factors; (f) any statement made by the defendant regarding sentenc ing; and (g) the potential or lack of p otential for rehabilitation or treatment. SeeTenn. Code Ann. §§ 40-35 -102, -1 03, -210; State v. Brewer , 875 S.W.2d 298, 302 (Tenn. Cri m. App. 1993); Sta te v. Thom as , 755 S.W.2d 838, 844 (T enn. Crim. App. 1988).

If our review reflects that

the trial court followed the statutory sentencing procedure, that the court imposed a lawful sentence after having given due consider ation a nd proper weight to the factors and principles set out under the sentencing law, and that the trial court’s findings of fact are adequately

supported by the record, then we may not modify the se ntence even if we would have preferred a different result. See State v. Pike , 978 S.W.2d 904, 926-2 7 (Tenn. 1998); State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).2 See Tenn. Code An n. § 39-13-402(b).

3 See Tenn. Code An n. § 39-14-403(b).

4 “Convictions

for multiple fel

onies committed as part of a si ngle course of conduct within t wenty-four (24) hour s constitute o ne (1) convict ion for the

purpose of det

ermining pri

or convicti

ons.” Tenn. Code Ann. § 40-35- 107(b)(4).

5 At least five of these occu rred on separate d ates.
-7- The Defendant was c

onvicte d of aggravated robbery, a Class B felony, 2 and aggravated burglary, a Class C felony. 3 A defendant may be classified as a

persistent offender upon a finding that h e has received “[a]ny combination of five (5) or more prior felony convictions within the conviction class or higher, or within the next two (2) lower felony classes, where applicable.” Tenn. Code Ann. § 40-35-107(a)(1). In this case, the State put on proof that the Defendant has multiple felony convictions dating from the period 1977 through 1988. The trial court found that five of these prior convictions were Class D felonies occurring on separate date

s, 4 and at least seven of them were Class E felonies. 5 Accordingly, the trial court determine d beyond a reasonable doubt that the Defendant

was a pers istent offender with respect to the instant felony convictions, and therefore subject to a Range III sentence. See id. § 40-35-107(c). The trial court subsequently sentenced the Defendant

to the minimum senten

ces available

for a Range III, persistent offender on Class B and C felonies. See Tenn. Code Ann. § 40-35-112(c)(2), (3).

The Defendant now contends that the trial court erred, arguing that all but one of his prior convictions would have been Class E felonies or misdemeanors had the underlying off en ses been committed after 1989, and that he therefore should be found to have insufficient prior felonies of the relevant classes to be classified as a persistent offender with respect to

his instant felony c

onvictions. In other words,

the Defendant asserts that the trial court should have evaluated the classifications of his prior convictions as if the underlying offenses had been committed after

1989 rather than before. This Court has previous

ly rejected this a

rgument. See State v. Wright , 836 S.W.2d 130, 136 (Tenn. Crim. App. 1992). In Wright , the defendant conte sted the trial cour

t's determination t

hat he was a
career offender, using an argument identical to the Defendant’s. In rejecting thi s argume nt, this Courtnoted that , “[w]hen calculating the number of prior convicti

ons a defendant h

as received, ‘[

a]ll prior felony convictions including those occurring prior to November 1, 1989, s hall be included .

. . . ’” Id. (quoting Te nn. C ode Ann. § 40-35-108(b)(2)). In light of this statutory provision, the Wright panel deter

mine d that “[t]he legislature, in enacting [the career offender provision], was
awarethat some offenses which were felonies under prior law were no longer feloni es u nder the [Criminal Sentenci ng Reform Actof 1989]. There appears to be no doubt that the legislature intended to permit consideration of all prior felony convictions occurring during the d efendant ’s life.” 836 S.W.2d at 136. See also State v. Chris Billingsley , N o. 01C01-950 6-CC-00166, 1996 Tenn. Crim. App. LEXIS 304, at *16 (Nashville, May 16, 1996). The same analysis applies to the persis tent offe nder provision. Accordingly, the trial court did not err in refusing to classify the De fendant’s prior convictions as though the underlying offenses had been committed after 19 89.-8-

The record

supports the trial court’s determination that the Defendant is a persistent offender withrespect to the instant f elony convictions,

and therefore s

ubject to Range II

I sentences. Thi

s issue is, therefo

re, without merit.

The Defendant’s co

nvictions of aggra

vated assault

and theft are reversed and dismissed. The judgment of the trial court is otherwise affirmed.

___________________________________ DAVID H. WELLES, JUDGE